The Government Could Not Work Doctrine

Abstract

The Supreme Court has recently declared that it is presumptively unconstitutional for the government to compel individuals to do or pay for things to which they have religious or political objections. Last Term, the Court applied this declaration to uphold the First Amendment arguments made by public-sector employees, and it appears poised to vindicate similar claims by religious objectors to antidiscrimination laws in the future. But this declaration is wrong. Indeed, throughout American history—from the Articles of Confederation through Lochner v. New York and Employment Division v. Smith, the Court itself has repeatedly rejected the notion that compulsory laws, in and of themselves, are presumptively unconstitutional.

This Article offers a novel examination of the history of challenges to compulsory laws inside and outside the context of the First Amendment. For centuries, the Supreme Court has faced hundreds of challenges to objectionable taxes, objectionable drafts, objectionable regulations, and objectionable funding conditions. With few exceptions, the Court has responded that the “government could not work” if it lacked the power to compel people to do things to which they objected. Although the Constitution prescribes many specific limits on the powers of the federal and state governments, the Constitution’s very purpose was to create a union that had the power to compel political minorities to accept the will of a political majority. Such a union would be incompatible with a governing document that prohibited officials from compelling people to take any action to which they religiously or politically objected—even when those objections were sincerely held.

Borrowing the Supreme Court’s own language, I call the Court’s typical response the “government-could-not-work” doctrine, and conclude that objectionable compulsion, in and of itself, should not trigger the strict scrutiny of Abood v. Detroit Board of Education. Rather, compulsory laws should be treated the same as any other law, and analyzed for whether they are arbitrary, are discriminatory, or otherwise violate specific constitutional limits.

Keywords: constitutional law, first amendment